Untitled Texas Attorney General Opinion

The Attorney’ General of Texas
JIM MATTOX Fthruary 21, 1986
AttorneyGeneral
Supreme Court Building Mr. 0. L. McCotter opinion No. JM-438
P. 0. Box 12548 Director
Austin, TX. 78711. 2548 Texas Department of Corrections Re: Validity of article 6166x-1,
5121475-2501 P. 0. Box 99 V.T.C.S., regarding good time
Telex 910/874-1367
Telecopier 512/4750268
Huntsville, Texas 77340 credit
Dear M?. McCotter:
714 Jackson, Suite 700
Dallas, TX. 75202-4506 You have sskml for an opinion regarding the continuing validity
214/742-8944
cf a statute that provided for prisoners to receive deductions from
their sentences because of overtime work. V.T.C.S. art. 6166x-1.
4824 Alberta Ave., Suite 160
El Paso, TX. 799052793 Article 6166x-l was enacted in 1938 to replace a 192i statute
9151533-3484 that contained esmntially the same provisions. See Historical Note
to article 6166x-1, V.T.C.S. Article 6166x-1 established a scheme
1001 Texas, Suite 700
under which prisoners received a two-hour deduction from their terms
Houston, TX. 77002~3111 for every hour of "necessary and essential overtime work."
713l2235aSS
In 1943 the legislature enacted a statute that provided for
commutation of the for "good conduct, industrv and obedience."
SW Broadway, Suite 312
Lubbock, TX. 79401-3479
Article 61841, V.'C.,C.S.,
repealed bx Acts 1977, 65th Leg., ch. 347,
8061747.5238 86, at 933. Article 61841 contained the following language:
No overl:jmeallowance or credits, in addition to
4209 N. Tenth. Suite S
the comnatation of time herein provided for good
McAllen. TX. 79501-1885
512M2.4547 conduct, 'maybe deducted from the term or terms of
sentence8 with the exception that for extra
meritorious conduct on the part of any prisoner,
200 Main Plaza, suite 400 he may te recommended to the Board of Pardons and
San Antonio, TX. 782052797
Paroles and to the Covernor for increased commuta-
512/2254191
tion or for a pardon or parole.
An Equal OpportunitYl This Act shall sot take effect in the cases of
Atfirmative Action Employer those pl:%sonerswho at the time this Act takes
effect are being credited with more than twenty
(20) da!rs per month by virtue of overtime job
assignments except upon removal from such asslgn-
ment bet,aase of misconduct, escape, or return to
prison because of violation of clemency.
p. 2002
Mr. 0. I,.McCotter - Page 2 (JM-438)
Article 61841 impliedly repealed article 6166x-1. A new statute that
is irreconciiablv repugnan: to an old statute implledly repeals the
old statute. Conley-vi Dau&hters of the Republic, 157 S.W. 937 (Tex.
1913). Since article 61843. stated that no overtime credit may be
deducted from prisoners' &tences except as provided therein, it was
irreconcilably repugnant to article 6166x-1, which prcvided for
overtime credit to be deducted from prisoners' sentences. Implied
repeals are not favored, but this is an instance in which the
repealing effect of the latter statute is incontestable since the
lannuane of article 61841 makes clear that the legislature intended
article 61841 to replace-article 6166x-1. See Texas & N.O.R. Co. v.
W.A. Kelso Bzlding Materis.]. Co., 250 S.W.2dx6, 430 (Tsx. Civ. App.
-- Galveston 1952, writ rcz'd.r.e.) (implied repeal will be found
only when plainly intended by legislature).
Article 61841 did not take effect with respect to prisoners who
were earning more-than 20 days of overtime credit a month at the time
article 61841 otherwise tlook effect. The provisions of article
6166x-1 remaged in effect as to those prisoners. Because a prisoner
would have had to have been working 100 hours of overtime a month to
have been receiving 20 days of credit a month under article 6166x-1,
we assume that the exception from the application of article 61841
applied to very few prisoners. Since the exception from the
provisions of article 61843,applied to prisoners who were earning more
credit under article 6166x-,1than they could earn under the provisions
of article 61841, we assuxe that the purpose of the exception was to
preclude any conceivable c,laim that article 61841 operated as an ex
post facto law. You tell. us that you cannot find any persons OK
records that shed light on the way article 6166x-1 was applied.
Therefore, it seems likely that it has been many years since article
6166x-1 had even the lingerf.ngeffect provided for in article 61841.
You are concerned, however, about the effect of the 1977 repeal
of article 61841. You ask whether article 6166x-1, which is still in
the statute books because it wss cot expressly repealed, was
resurrected by the repeal of article 61841 and whether prisoners
should receive credit under article 6166x-1 as well as article 6181-1,
a 1977 statute that regulates good time credit.
Under the common law, the repeal of a repealing statute revived
the original enactment. C:. Sands, Sutherland Statutory Construction
523.31, at 413 (4th ed. 1.985). A Texas statute provides, however,
that the repeal of a statute does not revive a law repealed by such
statute. V.T.C.S. art. lC#, $7. Similar provisions enacted by other
jurisdictions have been hf:ld to apply to implied repeals as well as
express repeals. C. Sands, Sutherland Statutory Construction 523.31
n. 3, at 414 (4th ed. 19818). We think a Texas court would apply the
same rule. Thus, article 6166x-1 has not been revived and has no
effect.
p. 2003
_‘
, Mr. 0. L. M&otter - Page : (JM-438)
SUMMARY
Article 6166x-:.,V.T.C.S., was impliedly repealed
in 1943 by the enmtment of article 61841, V.T.C.S.
The repeal of article 61841 in 1977 did not revive
article 6166x-1.
J l/1&
Very truly your ,
A
JIM MATTOX
Attorney General of Texas
JACK HIGHTObiR
First Assistant Attorney Gmeral
MARY KELLER
Executive Assistant Attomay General
ROBERT GRAY
Special Assistant Attorney General
RICX GILPIN
Chairman, Opinion Comitte?
Prepared by Sarah Woelk
Assistant Attorney General
p. 2004